55 – Day 14- June 26th 2002 – Transcript trial David Westerfield

TRIAL DAY 14 – PART 3 – afternoon 1
SAN DIEGO, CALIFORNIA, WEDNESDAY, JUNE 26, 2002, 1:30 P.M.


WITNESSES:
Mitchell Holland (Bode Technology group forensic D. N. A. Laboratory, testified about S. T. R. D. N. A. and mitochondrial D. N. A.- Cross-examination continued)
Jim Frazee (Volunteer canine handler, testified about Hopi, cadaver dog searching for Danielle’s scent in Westerfield’s RV – Examination and cross-examination)


–O0O–
THE COURT: GOOD AFTERNOON, LADIES AND GENTLEMEN. WELCOME BACK.
I HAVE SOME GOOD NEWS AND SOME BAD NEWS. THE GOOD NEWS IS BARRY BONDS ISN’T PLAYING TODAY. THE BAD NEWS IS THE PADS LOADED THE BASES IN THE FIRST INNING, AND GUESS HOW MANY RUNS THEY SCORED.
JUROR NUMBER 16: NONE.
THE COURT: NONE.
ALL RIGHT. MR. FELDMAN.

MITCHELL HOLLAND, RESUMED

CROSS-EXAMINATION, CONTINUED
BY MR. FELDMAN:
Q: GOOD AFTERNOON, SIR.
A: GOOD AFTERNOON.
Q: I WANT TO DIRECT YOUR ATTENTION TO A HAIR ON THE COMFORTER WHICH HAS BEEN IDENTIFIED I THINK AS YOUR 42A. GOT IT?
A: YES.
Q: SIR, WITH REGARDS TO THAT HAIR, THAT WAS LOCATED ON WHAT WAS REPRESENTED TO YOU TO BE A COMFORTER, IS THAT RIGHT?
A: IT WAS IDENTIFIED AS AN ENVELOPE CONTAINING ONE BINDLE WITH ONE HAIR FROM ITEM 92C-HF.
Q: ALL RIGHT.
AND YOU WERE ABLE TO OBTAIN A FULL MITOCHONDRIAL PROFILE ON THAT PARTICULAR HAIR, IS THAT CORRECT, SIR?
A: THAT IS CORRECT.
Q: AND YOU GOT NO MATCH, IS THAT CORRECT?
A: NO MATCH WITH?
Q: DAVID WESTERFIELD.
A: NO.
Q: NO MATCH WITH DANIELLE VAN DAM.
A: THAT’S CORRECT.
Q: DIRECTING YOUR ATTENTION, SIR, TO WHAT I THINK IS YOUR 67, I THINK THAT’S OUR HAIR 7A. THIS IS FROM THE SHOWER DRAIN. MAYBE OUR 67, YOUR 7A. DOES THAT HELP YOU?
A: YES, THAT’S CORRECT.
Q: SIR, YOU PREPARED A REPORT ON THE 30TH OF MARCH, IS THAT CORRECT?
A: 30TH OF MAY.
Q: I’M SORRY. THANK YOU.
A: YES.
Q: WITH REGARD TO THIS PARTICULAR HAIR, YOU WERE ABLE TO OBTAIN A FULL MITOCHONDRIAL MATCH, IS THAT RIGHT, SIR?
A: WE OBTAINED A FULL MITOCHONDRIAL PROFILE, YES.
Q: AND YOU WERE UNABLE TO MATCH IT TO DANIELLE VAN DAM, CORRECT?
A: FOR 10A THAT IS CORRECT.
Q: AND YOU WERE UNABLE TO MATCH IT TO DAVID WESTERFIELD, IS THAT RIGHT?
A: WE WERE NOT — WE DID NOT DETERMINE ANY PROFILE FROM
— REFERENCE FROM MR. WESTERFIELD.
Q: WITH REGARD TO THE ISSUE OF YOUR LABORATORY’S EVALUATION OF HAIRS, DO YOU FROM TIME TO TIME GET HAIRS THAT HAVE ROOTS ON THEM?
A: YES.
Q: ARE YOU ABLE TO INFER HOW THOSE HAIRS COME TO YOU WITH ROOTS?
A: FROM THE STANDPOINT OF HOW THEY WERE REMOVED FROM THE HEAD OR —
Q: WHETHER THEY FELL OFF, WHETHER THEY WERE PULLED OUT.
A: IN GENERAL A FORCIBLY REMOVED HAIR WILL HAVE QUITE A BIT OF ITS FOLLICULAR TISSUE. A SHED HAIR WILL HAVE LESS. BUT IT DOESN’T NECESSARILY MEAN IT WAS TAKEN IN THAT REGARD.
Q: SO YOU CANNOT STATE WITH REGARD TO ANY OF THE HAIRS YOU DID — I THINK YOU DID SOME S.T.R. ON SOME OF THE HAIRS THAT HAD ROOTS.
A: THAT’S RIGHT.
Q: YOU CAN’T STATE WHY THE ROOTS WERE THERE; THEY COULD HAVE FALLEN OUT FOR ANY OTHER REASON, IS THAT RIGHT?
A: I COULDN’T TELL YOU DEFINITELY ANY — WHETHER IT WAS A FORCIBLY REMOVED HAIR.
Q: WITH REGARD TO ANY OF THE HAIRS, CAN YOU TELL ME HOW LONG THEY HAD BEEN IN THE LOCATION THAT THEY WERE IN?
A: NO.
Q: CAN YOU TELL ME HOW THEY HAD GOTTEN TO THE LOCATION THAT THEY WERE IN?
A: NO.
Q: CAN YOU TELL ME HOW LONG THEY COULD HAVE STAYED IN THE LOCATION THEY WERE IN?
A: NO.
MR. FELDMAN: NO FURTHER QUESTIONS.
THE COURT: ANYTHING FURTHER, MR. CLARKE?
MR. CLARKE: MAY I HAVE JUST A MOMENT?
(DISCUSSION OFF THE RECORD BETWEEN MR. CLARKE
AND MR. DUSEK.)
MR. CLARKE: I HAVE NO QUESTIONS.
THE COURT: MAY THE WITNESS BE EXCUSED?
MR. CLARKE: YES.
THE COURT: ANY PROBLEM?
MR. FELDMAN: NO, YOUR HONOR.
THE COURT: DOCTOR, THANK YOU VERY MUCH FOR COMING IN. YOU ARE FREE TO LEAVE THESE PROCEEDINGS. YOU ARE UNDER AN ORDER, HOWEVER, NOT TO DISCUSS YOUR TESTIMONY UNTIL THE MATTER IS CONCLUDED.
THE WITNESS: THANK YOU.
THE COURT: ALL RIGHT. THANK YOU.
(THE WITNESS WAS EXCUSED.)
THE COURT: WE’RE DOING A TAG TEAM THIS AFTERNOON, MR. DUSEK?
MR. DUSEK: OKAY.
JIM FRAZEE.

JIM FRAZEE,
CALLED AS A WITNESS BY THE PLAINTIFF, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:
THE CLERK: SIR, PLEASE STATE YOUR NAME AND SPELL IT FOR THE RECORD.
THE WITNESS: JIM FRAZEE. F-R-A-Z-E-E.

DIRECT EXAMINATION
BY MR. DUSEK:
Q: GOOD AFTERNOON, MR. FRAZEE.
A: GOOD AFTERNOON.
Q: DO YOU DO SOME WORK FOR THE LOCAL SHERIFF’S DEPARTMENT?
A: YES, I DO.
Q: WHAT TYPE OF WORK DO YOU DO, SIR?
A: I’M A VOLUNTEER CANINE HANDLER.
Q: HOW LONG HAVE YOU BEEN DOING THAT WORK?
A: TEN YEARS.
Q: AND AS A VOLUNTEER CANINE HANDLER, WHAT DO YOU DO?
A: WE LOOK FOR MISSING PEOPLE.
Q: WITH DOGS?
A: YES.
Q: HOW MANY DOGS DO YOU HAVE?
A: I HAVE TWO.
Q: THEIR NAMES?
A: HOPI AND CIELO.
Q: COULD YOU SPELL EACH OF THOSE DOGS FOR US.
A: H-O-P-I. AND C-I-E-L-O.
Q: WHICH DOG HAVE YOU HAD THE LONGEST?
A: HOPI.
Q: HOW LONG HAVE YOU HAD HOPI?
A: ELEVEN YEARS.
Q: AND CIELO, HOW LONG HAVE YOU HAD THAT DOG?
A: THREE YEARS.
Q: WHEN YOU GET YOUR DOGS, DO YOU HAVE TO TRAIN THEM IN SOME SORT OF WAY?
A: YES. EXTENSIVELY.
Q: THEY DO NOT COME TO YOU TRAINED?
A: NO.
Q: ALL RIGHT.
HAVE YOU HAD ANY EXPERIENCE ON HOW TO TRAIN DOGS?
A: YES. I TRAINED BOTH DOGS TO MISSION-READY STATUS.
Q: DID YOU GET ANY TRAINING ON HOW TO DO THAT?
A: YES.
Q: EXPLAIN THAT FOR US, WOULD YOU PLEASE.
A: PRIMARILY IT’S A MENTORING PROGRAM. WE GO THROUGH AN APPRENTICESHIP PERIOD WITH TWO EXPERIENCED HANDLERS WHO MONITOR OUR PROGRESS AND RECOMMEND US TO TAKE THE MISSION-READY TEST.
Q: AND HOW LONG DOES YOUR TRAINING PROCESS GO ON?
A: IT’S CONTINUOUS.
Q: ALL RIGHT.
HOW OLD WAS HOPI WHEN YOU FIRST GOT HOPI? IS THAT A BOY OR A GIRL DOG?
A: MALE.
HE WAS FOURTEEN MONTHS OLD.
Q: ABOUT WHEN DID YOU GET HIM?
A: SEPTEMBER OF ’91.
Q: AND CIELO, HOW OLD WAS HE —
A: YES.
Q: — WHEN YOU GOT HIM?
A: EIGHT WEEKS.
Q: WHEN DID YOU GET HIM?
A: OCTOBER OF ’98.
Q: DID YOU GET THEM FROM ANY SPECIAL PLACE?
A: I GOT THEM BOTH FROM SHOW BREEDERS.
Q: HERE IN SAN DIEGO?
A: NO. ONE IS SOUTHERN CALIFORNIA; THE OTHER IS IN NEW MEXICO.
Q: WHAT TYPE OF DOGS ARE THEY?
A: VIZSLAS.
Q: CAN YOU SPELL THAT FOR US.
A: V AS IN VELCRO E — I’M SORRY — I-Z-S-L-A.
Q: HOW BIG ARE THEY?
A: TWENTY-FOUR INCHES AT THE SHOULDERS.
Q: WHAT COLOR?
A: GOLDEN RUST.
Q: SORRY?
A: GOLDEN RUST.
Q: ARE THERE DIFFERENT TYPES OF DOGS, CAPABILITY OF DOGS OR WHAT YOU ASK THEM TO DO IN YOUR TYPE OF WORK?
A: WE HAVE TWO MAJOR CATEGORIES OF SEARCH-AND-RESCUE DOGS. ONE IS TRAILING DOG, WHICH IS WHAT WE TYPICALLY THINK OF AS PRESENTING THEM WITH AN ARTICLE OF CLOTHING THAT BELONGS TO THE SUBJECT. THEY ARE SCENT-SPECIFIC. AND THEY WILL FOLLOW THE TRAIL OF THAT PERSON UNTIL THEY FIND THE PERSON.
Q: WHAT DO YOU MEAN BY SCENT-SPECIFIC?
A: THEY IGNORE OTHER HUMAN SCENTS.
Q: HOW DO THEY KNOW WHICH ONE TO FOLLOW?
A: I BELIEVE IT’S INSTINCTIVE. WE SAY THAT WE TRAIN THEM, BUT BASICALLY IT’S MORE OF A CONDITIONING THAN A TRAINING.
Q: DESCRIBE THE TRAINING PROCESS FROM THE VERY BEGINNING.
A: WELL, WITH TRAILING DOGS, WE BASICALLY MAKE USE OF THEIR INNATE DRIVES OR INSTINCTS. AND WE HAVE A PERSON, USUALLY THE HANDLER WILL RUN AWAY WHILE THE DOG IS BEING RESTRAINED, AND THIS DOG NATURALLY WANTS TO FOLLOW THAT PERSON.
AND THEN WE PROGRESS FROM THAT, MAKING IT MORE AND MORE COMPLICATED AND VARYING THE TIMES AND THE LENGTHS OF THE TRAILS UNTIL THEY ARE READY TO TAKE THEIR MISSION-READY TEST.
Q: WHAT IS A MISSION-READY TEST?
A: IT’S A CERTIFICATION THAT IS OFFERED BY THE GROUP THAT I BELONG TO, WHICH IS THE CALIFORNIA RESCUE DOG ASSOCIATION. WE USE THE ACRONYM CARDA TO ABBREVIATE IT.
Q: WHAT IS IT?
A: IT’S A GROUP OF VOLUNTEER HANDLERS THAT ARE THROUGHOUT THE STATE. THEY’RE RECOGNIZED BY THE GOVERNOR’S OFFICE OF EMERGENCY SERVICES.
Q: DESCRIBE THE TEST THAT THEY GO THROUGH TO BECOME CERTIFIED.
A: FOR TRAILING IT’S A TRAIL THAT HAS TO BE LAID OVER TEN HOURS AND NOT MORE THAN TWENTY-FOUR HOURS PRIOR TO THE DOG TAKING THE TEST. THE HANDLER DOES NOT KNOW WHERE THE SUBJECT WENT, AND THE TRAIL IS A MILE TO A MILE AND A HALF LONG.
Q: WHY DOES IT HAVE TO BE LAID THAT MUCH IN ADVANCE OF THE TEST?
A: BECAUSE TYPICALLY BY THE TIME WE’RE CALLED OUT, THE SUBJECT HAS BEEN MISSING FOR AT LEAST THAT LONG.
Q: AND THE HANDLER WOULD BE YOU DOESN’T KNOW WHERE THE TRAIL IS SUPPOSED TO GO?
A: THAT’S CORRECT.
Q: SO WHAT HAPPENS?
A: THERE ARE TWO EVALUATORS. ONE OF THEM HAS TO BE ON THE OPERATIONS COMMITTEE. THE OTHER ONE HAS TO BE MISSION-READY IN TRAILING.
Q: ARE THEY PEOPLE PART OF YOUR LOCAL ASSOCIATION OR PEOPLE FROM ELSEWHERE?
A: WE PREFER THAT THEY BE OUT OF THE AREA AND THAT THE TEST BE GIVEN IN AN AREA THAT’S UNFAMILIAR TO THE HANDLER. BUT IN SAN DIEGO WE WOULD HAVE TO GO TO CENTRAL CALIFORNIA IN ORDER TO FIND SOMEBODY TO EVALUATE US.
Q: AND WHEN THE EVALUATION GOES ON, WHAT IS BEING EVALUATED, WHAT TYPES OF SKILLS OR TECHNIQUES?
A: WELL, THERE ARE HANDLER SKILLS THAT ARE BEING EVALUATED. THEY DO AN INTERVIEW AS THOUGH THEY WERE FIRST REPORTING ON SCENE TO TAKE INFORMATION FROM THE REPORTING PARTIES. THEY HAVE TO VERIFY THAT THEY ARE CERTIFIED IN FIRST AID AND C.P.R. AND THEY HAVE TO HAVE PERFORMED A FITNESS TEST WITHIN THE LAST YEAR.
Q: THESE WOULD BE EVALUATIONS OF YOU AS THE HANDLER?
A: YES.
Q: AND THEN WHAT FACTORS DO THEY CONSIDER IN EVALUATING THE DOG’S PERFORMANCE?
A: FOR TRAILING PRIMARILY WHETHER OR NOT THEY FIND THE SUBJECT.
Q: IS THERE A TIME LIMIT?
A: FOUR HOURS.
Q: ARE THERE ANY DISTRACTIONS PLACED ON THE TRAIL TO TRY TO GET THE DOG OFF TRACK?
A: AT LEAST AN HOUR PRIOR TO THE TEST BEING RUN THE TRAIL HAS TO BE CROSSED WITH HUMANS AND DOGS.
Q: WHY?
A: TO SEE WHETHER OR NOT THE DOG IS DISTRACTED.
Q: ALL RIGHT.
NOW, ONCE A DOG IS CERTIFIED, HOW OFTEN IS RECERTIFICATION?
A: ON AN ANNUAL BASIS.
Q: ARE THERE ANY OTHER TESTS OR PRACTICE PROCEDURES BETWEEN THOSE PERIODS OF TIME?
A: TRAINING IS ONGOING. IT’S ON THE VOLUNTARY BASIS. BUT TYPICALLY I TRAIN AT LEAST ONCE A WEEK.
Q: AND BY TRAINING WHAT DO YOU MEAN?
A: WE GET TOGETHER WITH A GROUP OF OTHER HANDLERS IN OUR UNIT AND SET UP PROBLEMS FOR EACH OTHER. AND FREQUENTLY WE’LL GO OUT WITH EACH OTHER TO OBSERVE THE OTHER DOGS WORK.
Q: THE TRAINING THINGS THAT YOU GO TO, DO YOU TRY TO VARY THE LOCATION TIME, THAT TYPE OF THING?
A: YES.
Q: WHY?
A: SO THE DOG DOESN’T GET TOO USED TO WORKING IN THE SAME PLACE.
Q: DESCRIBE THE VARIATIONS THAT YOU TRY TO USE.
A: THE WAY THE SCHEDULE IS SET UP CURRENTLY, WE TRAIN AT LEAST ONCE IN CUYAMACA. WE TRAIN AT U. C. S. D. AND WE HAVE A COUPLE OF LOCAL PARKS, LIKE SYCAMORE CANYON, THAT WE TRAIN IN.
Q: WHAT’S THE BENEFIT OF GOING OUT TO THE CUYAMACA SITE?
A: PRIMARILY WE’RE WILDERNESS ORGANIZATION, AND THAT IS THE AREA THAT WE GET CALLED OUT IN. SO WE LIKE TO TRAIN IN THE SAME AREA.
Q: AND THEN THE U. C. S. D., WHAT’S THE BENEFIT THERE?
A: THAT’S AN URBAN ENVIRONMENT. WE CAN SET UP TRAILS THAT GO THROUGH THE MIDDLE OF CAMPUS AND HAVE SITUATIONS WHERE THERE ARE LOTS OF OTHER SCENTS THAN THE ONES THAT THE DOG IS FOLLOWING.
Q: NOW, YOU JUST DESCRIBED FOR US A TRAILING DOG OR A SCENT-SPECIFIC DOG. IS THAT RIGHT?
A: YES.
Q: ARE EITHER OF YOUR DOGS ONE OF THOSE?
A: YES. HOPI IS.
Q: WHAT ABOUT CIELO; WHAT TYPE OF DOG IS THAT?
A: CIELO IS AN AREA SEARCH DOG, WHICH MEANS THAT HE IS NOT SCENT-SPECIFIC. HE IS TRAINED TO FIND ANY HUMAN THAT IS MISSING. HE WORKS OFF LEAD, AND HE HAS TO GO OUT, FIND THE SUBJECT, COME BACK TO ME, AND DO WHAT IS — WHAT WE CALL AN ALERT. AND CIELO’S PARTICULAR CASE, HE SITS IN FRONT OF ME AND MAKES EYE CONTACT AND BARKS. AND THEN I GIVE HIM THE COMMAND TO SHOW ME WHERE THE SUBJECT IS, AND HE HAS TO GO BACK AND RE-FIND THE SUBJECT. AND I FOLLOW HIM IN TO THE SUBJECT.
Q: SO CIELO DOES SOMETHING DIFFERENT THAN A TRAILING OR SCENT-SPECIFIC DOG.
A: THAT’S CORRECT.
Q: IS THAT BECAUSE HIS SKILLS OR ABILITIES ARE DIFFERENT THAN THAT OTHER TYPE OF DOG OR JUST BECAUSE YOU TRAINED HIM FOR THIS DIFFERENT TASK?
A: JUST BECAUSE I TRAINED HIM FOR THE DIFFERENT TASK.
Q: WHY?
A: IT’S — WELL, I LIKE TO BE MORE VERSATILE I SUPPOSE AND HAVE ONE DOG OF EACH KIND. I LIKE TO BROADEN MY SKILLS.
Q: AND YOU TOLD US THAT YOU’VE HAD CIELO FOR ABOUT THREE YEARS.
A: YES.
Q: DESCRIBE THE TRAINING THAT CIELO HAS BEEN THROUGH FROM THE VERY BEGINNING.
A: WE START AREA SEARCH DOGS SIMILAR TO THE WAY THAT WE TRAIN TRAILING DOGS IN THAT WE HAVE USUALLY THE HANDLER RUNNING AWAY FROM THE SUBJECT WHILE SOMEONE ELSE RESTRAINS THEM. THEN THEY TURN THE DOG LOOSE, AND THE DOG NATURALLY FOLLOWS WHERE THE SUBJECT WAS. THEY ARE STILL IN PLAIN SIGHT, SO — AND THE SUBJECT IS RUNNING AWAY. SO THE DRIVE THAT WE — THAT THE DOG USES IS THE PLAY DRIVE OR PREY DRIVE BECAUSE THEY ARE NATURALLY — THEY HAVE A NATURAL INCENTIVE TO FOLLOW MOVING OBJECTS. AND WE REWARD THE DOG WHEN THEY GET TO THE HANDLER. AND EVENTUALLY WE’LL SWITCH AND HAVE A STRANGE PERSON DO THE SAME THING. AND THEN WE TEACH THE DOGS THE FOUR STEPS, AREA SEARCH IN REVERSE ORDER.
Q: WE WILL GET TO THAT IN A MINUTE.
A: OKAY. I’M SORRY.
Q: YOU TALKED ABOUT REWARDING THE DOG WHEN IT DOES WHAT IT’S SUPPOSED TO DO.
A: YES.
Q: HOW DO YOU REWARD THE DOG?
A: MOST HANDLERS USE FOOD. SOME OF THEM USE A PLAY REWARD, TENNIS BALL OR A TUG TOY OR SOMETHING LIKE THAT.
Q: SO AT THE BEGINNING THE INITIAL TRAINING IS SIMILAR TO BOTH THE TRAILING DOG AND THE AREA SEARCH DOG.
A: YES.
Q: WHEN DOES IT BREAK AWAY TO SOMETHING DIFFERENT FOR THE AREA SEARCH DOG?
A: WELL, THE MAIN TASK OF THE AREA SEARCH DOG IS TO FIND THE SUBJECT USING AIR SCENT. SO WE HAVE THE SUBJECT HIDE SO THEY’RE OUT OF SIGHT OF THE DOG. AND THEN THEY HAVE TO USE THEIR NOSES TO SCENT THE AIR AND FOLLOW THAT IN TO THE SUBJECT.
Q: HOW DO YOU DO THAT IN THE TRAINING PROCESS?
A: WELL, BASICALLY THAT’S INSTINCTIVE, TOO. IF THE SUBJECT RUNS AWAY AND HIDES AND IT’S CLOSE BY, THE DOG SOMEWHAT REMEMBERS WHERE THE SUBJECT WAS. BUT AS WE GET FARTHER AND FARTHER AWAY, THE DOG HAS TO DEPEND MORE ON ITS NOSE TO FIND THE SUBJECT.
Q: YOU’RE ABOUT TO TELL US ABOUT A FOUR-STEP PROGRAM FOR THE TRAINING.
A: RIGHT. THE FOUR STEPS ARE THE DOG HAS TO LOCATE THE SUBJECT, THE DOG HAS TO RETURN TO THE HANDLER, THE DOG HAS TO PERFORM HIS ALERT, AND THE DOG HAS TO TAKE THE HANDLER BACK TO THE SUBJECT.
Q: AND HOW DO YOU GO ABOUT TEACHING THE DOG THOSE FOUR STEPS?
A: WELL, WE DO WHAT’S CALLED REVERSE CHAINING. IN OTHER WORDS, WE TRAIN THE RE-FIND OR THE DOG TAKING THE HANDLER BACK TO THE SUBJECT FIRST. THEN WE TRAIN THE STEP WHERE THE DOG HAS TO COME BACK TO THE SUBJECT, AND THEN WE TRAIN THE LOCATION OF THE SUBJECT.
Q: DESCRIBE FOR US HOW YOU TRAIN THE DOG TO TAKE YOU BACK TO THE SUBJECT.
A: BASICALLY WHEN ANOTHER PERSON RUNS AWAY AND HIDES, AS SOON AS YOU RELEASE THE DOG, YOU FOLLOW THE DOG IN. AND YOU’RE TRYING TO KEEP UP WITH IT. AND PRAISING IT. SO THAT IT KNOWS THAT THAT’S WHAT YOU WANT IT TO DO.
Q: AND DOES IT PROGRESS FROM THERE?
A: YES.
Q: HOW?
A: THE — I’M NOT SURE I UNDERSTAND.
Q: I ASSUME THERE ARE TIMES WHEN YOU JUST LET THE DOG GO TO SEE IF THEY CAN FIND WHATEVER IT IS IT’S LOOKING FOR.
A: AFTER THEY LEARN ALL THREE PRIOR STEPS, THEN YOU DO TURN THE DOG LOOSE.
Q: ALL RIGHT.
AND THEN HOW DO YOU TEACH THE DOG TO COME GET YOU TO GO TO WHERE YOU’RE SUPPOSED TO BE?
A: START OFF YOU JUST CALL IT LIKE AN OBEDIENCE RECALL. BUT IT VERY SOON LEARNS THAT THAT’S WHAT YOU WANT IT TO DO. YOU ALSO REWARD IT WHEN IT COMES IN, SO YOU’RE ENTICING IT TO COME BACK TO YOU WITH FOOD.
Q: YOU TALK ABOUT AN ALERT THAT YOU TEACH THE DOG.
A: YES.
Q: WHAT’S AN ALERT?
A: AN ALERT IS AN INDICATION OF BODY LANGUAGE BY THE DOG THAT IT HAS MADE THE FIND. THE DOG’S FREQUENTLY OUT OF SIGHT, AND YOU DON’T KNOW WHETHER OR NOT HE’S FOUND SOMEONE.
Q: WHAT ALERT DID YOU TEACH CIELO?
A: ORIGINALLY A SIT. BUT I’VE ADDED A BARK SINCE THEN.
Q: WHY?
A: I WANT TO HAVE MORE THAN ONE ALERT IN CASE THEY COME BACK AND I HAPPEN TO BE STANDING IN BRUSH AND HE’S UNABLE TO SIT DOWN.
Q: ALL RIGHT.
HOW LONG DOES IT TAKE OR DID IT TAKE TO GET CIELO TRAINED?
A: ABOUT A YEAR AND A HALF.
Q: HAS CIELO BEEN CERTIFIED?
A: YES.
Q: WHEN WAS THE FIRST TIME?
A: ON APRIL OF 2000.
Q: HAS HE BEEN RECERTIFIED?
A: YES.
Q: WHEN?
A: HE’S BEEN RECERTIFIED TWICE. I DON’T REMEMBER THE DATES. BUT TYPICALLY IT’S IN WINTERTIME BECAUSE WE LIKE TO TAKE ADVANTAGE OF THE COOLER TEMPERATURES.
Q: ALL RIGHT.
IS HE CERTIFIED NOW?
A: YES.
Q: AND YOU TALK ABOUT GENERALLY TRAINING A BIT AGO. IS THERE A PERIODIC TRAINING THAT YOU DO WITH CIELO?
A: YES. USUALLY WHEN I TRAIN HOPI IN TRAILING I ALSO TRAIN CIELO IN AREA SEARCH.
Q: DO YOU KEEP RECORDS OF THOSE?
A: SOMETIMES.
Q: WHAT DO YOU MEAN SOMETIMES?
A: I KEEP RECORDS THAT I HAVE ATTENDED A TRAINING, BUT I DON’T ALWAYS DETAIL WHAT THE DOGS DID.
Q: HAVE YOU PROVIDED US WITH THE TRAINING RECORDS FOR THOSE TWO DOGS?
A: YES, I HAVE.
Q: ARE YOU FAMILIAR WITH THE TERM CADAVER DOG?
A: YES.
Q: DOES THAT DIFFER FROM THE TWO TYPES OF DOGS THAT YOU DESCRIBED FOR US ALREADY?
A: YES.
Q: HOW SO?
A: THEY’RE TRAINED PRIMARILY TO FIND HUMAN REMAINS OR BODY FLUIDS. AND IN ORDER TO BE CERTIFIED IN CADAVER, THEY HAVE TO FIRST BE CERTIFIED IN WILDERNESS, WHICH IS EITHER AREA OR TRAILING.
Q: ALL RIGHT.
SO A CADAVER DOG WOULD FIRST HAVE TO BECOME THE TRAILING DOG OR AN AREA SEARCH DOG?
A: YES.
Q: AND THEN FURTHER TRAINED AS A CADAVER DOG?
A: THAT’S CORRECT.
Q: DESCRIBE THE ADDITIONAL TRAINING THAT GOES INTO BECOMING A CADAVER DOG.
A: PART OF THE CERTIFICATION PROCESS FOR AREA AND TRAILING IS THAT THEY HAVE TO BE EXPOSED TO CADAVER SCENT BECAUSE WE DON’T WANT THE DOGS TO BE SHOCKED IF THEY ARE LOOKING FOR A LIVE PERSON AND IT TURNS OUT THAT THEY’RE DEAD. THEY DON’T HAVE TO PERFORM ANY SPECIFIC BEHAVIORS. THEIR REACTION JUST HAS TO BE RECORDED SO THAT THE HANDLER IS FAMILIAR WITH WHAT MIGHT HAPPEN IF THEY DID COME ACROSS THE CADAVER. THE TRICK —
Q: SPECIFICALLY — I’M SORRY. GO AHEAD.
A: GO AHEAD.
Q: SPECIFICALLY WHAT DO YOU USE OR DO FOR THIS FURTHER TRAINING TO BECOME A CADAVER DOG?
A: WE HAVE VARIOUS SCENT ARTICLES. WE USE THINGS LIKE SOIL FROM UNDERNEATH A BODY. WE USE BLOOD. WE HAVE SOME CEREBROSPINAL FLUID. WE HAVE PORTIONS OF A PLACENTA. AND WE ALSO USE HUMAN CREMATED REMAINS.
Q: WHERE DO YOU GET THIS STUFF?
A: I DON’T KNOW.
Q: ONCE YOU GET THE STUFF, THEN WHAT DO YOU DO WITH IT TO TRAIN THE DOG?
A: THERE’S A VERY SHORT IMPRINTING PROCESS WHERE YOU JUST EXPOSE THE DOG TO IT AND PRAISE IT WHILE IT’S NEAR IT. SOME PEOPLE GO TO AS FAR AS TO WHEN THEY’RE RAISING PUPPIES, THEY’LL PUT CADAVER SCENT MATERIAL NEAR THEIR FOOD SO THAT THEY DEVELOP AN ASSOCIATION OF A PLEASURABLE EXPERIENCE BEING AROUND THAT SCENT. SOME PEOPLE USE LIKE CONCRETE BLOCKS. AND TWO OF THEM WILL HAVE NOTHING IN THEM. ONE OF THEM WILL HAVE CADAVER SCENT IN IT. AND WHEN THE DOG — AND THEN WE TAKE THE DOG OVER THE THREE BLOCKS. AND WHEN THE DOG SHOWS A REACTION, WE PRAISE THE DOG IMMEDIATELY SO THAT IT LEARNS THAT THAT’S WHAT WE WANT THEM TO FIND.
AFTER THEY’VE BEEN IMPRINTED, WE DO — WE SET UP PROBLEMS THAT ARE SIMILAR TO THE WILDERNESS TYPE OF PROBLEMS WHERE WE’LL PUT A SCENT SOURCE OUT OF SIGHT OF THE DOG AND TURN THE DOG LOOSE. AND IT LOOKS AROUND AND TRIES TO LOCATE IT.
Q: IF THE DOG IS SUCCESSFUL, IT GETS SOME SORT OF REWARD?
A: YES.
Q: DOES THIS CADAVER ABILITY, DOES THAT REQUIRE ADDITIONAL OR ANY OTHER DIFFERENT TYPE OF CERTIFICATION?
A: YES.
Q: DESCRIBE THAT.
A: TO BE CERTIFIED IN CADAVER, YOU HAVE TO HAVE RECORDED CONTINUOUS, I MEAN YOU HAVE TO RECORD TRAINING FOR SIX MONTHS. THEN THERE’S — THERE ARE SEVERAL SIGNOFFS THAT YOU HAVE TO DO USING VARIOUS METHODS OF HIDING THE SCENT SOURCE ABOVEGROUND, BURIED, HANGING, AND IN A BUILDING. AND THOSE ALL HAVE TO BE OUT OF SIGHT OF THE HANDLER. THE HANDLER HAS TO BE ABLE TO IDENTIFY SPECIFICALLY WHERE THE SCENT SOURCE IS.
Q: HOW DOES THE HANDLER KNOW THAT?
A: BASED ON THE DOG’S ALERTING.
Q: SO YOU’RE READING THE DOG AS OPPOSED TO KNOWING WHERE THE SCENT SOURCE IS BEFORE THE TEST?
A: YES. THAT’S CORRECT.
Q: HOW DO YOU LEARN TO READ A DOG?
A: YOU USE THE FORCE BASICALLY. BY PRACTICING OVER AND OVER AGAIN IT BECOMES A SECOND NATURE. AND IT’S KIND OF HARD TO EXPLAIN. IT’S SORT OF LIKE TRYING TO EXPLAIN HOW DO YOU DRIVE A CAR.
MR. BOYCE: YOUR HONOR, I OBJECT. THIS IS IRRELEVANT UNLESS HE’S TALKING ABOUT AN ALERT.
THE COURT: OVERRULED.
BY MR. DUSEK:
Q: FINISH YOUR ANSWER IF YOU WOULD, SIR.
A: I THINK I DID.
Q: ALL RIGHT.
HAS CIELO BEEN CERTIFIED AS A CADAVER DOG?
A: YES.
Q: WHEN DID THAT HAPPEN FIRST?
A: IN NOVEMBER OF 2000.
Q: IS THERE RECERTIFICATION FOR CADAVER DOGS?
A: YES. IT’S ALSO ON AN ANNUAL BASIS.
Q: HAS CIELO BEEN RECERTIFIED AS A CADAVER DOG?
A: YES.
Q: HOW MANY TIMES?
A: ONCE.
Q: HAVE YOU TAKEN CIELO OUT TO WORK REAL SCENES?
A: YES, I HAVE.
Q: HOW’S HE DONE?
A: HE’S LOCATED REMAINS ON TWO DIFFERENT OCCASIONS.
Q: DID ANY OF THEM INVOLVE WATER?
A: YES.
Q: CAN CADAVER DOGS WORK THROUGH OR AROUND WATER?
MR. FELDMAN: OBJECTION. RELEVANCE.
THE COURT: SUSTAINED.
YOU NEED NOT ANSWER.
BY MR. DUSEK:
Q: LET ME DIRECT YOUR ATTENTION TO FEBRUARY OF THIS YEAR. WERE YOU ASKED TO ASSIST LAW ENFORCEMENT WITH CIELO?
A: YES, I WAS.
Q: AND DO YOU RECALL GOING TO A MOTOR HOME AT A CERTAIN LOCATION IN EARLY PART OF FEBRUARY OF THIS YEAR?
A: YES.
Q: DO YOU RECALL WHEN THAT WAS?
A: THE FIRST TIME I BELIEVE WAS TUESDAY NIGHT, POSSIBLY MONDAY NIGHT, FOLLOWING WHEN DANIELLE WENT MISSING.
Q: MEANING THE SAME WEEK?
A: THE FOLLOWING WEEK, BECAUSE WE FIRST WERE NOTIFIED ON A SATURDAY NIGHT.
Q: IF WE WERE TO ASSUME THAT SHE WAS REPORTED MISSING ON FEBRUARY 2ND, A SATURDAY, WHAT WAS THE FIRST TIME THAT YOU WENT TO A MOTOR HOME?
A: EITHER THE 4TH OR THE 5TH.
Q: ALL RIGHT.
A: IT WAS WHEN IT WAS AT HIGH VALLEY.
Q: STILL, THE MOTOR HOME WAS STILL IN THE FIELD, CORRECT?
A: YES.
Q: LET ME SHOW YOU WHAT’S BEEN PREVIOUSLY MARKED AS COURT’S EXHIBIT 49, THIS PHOTO DISPLAY BOARD LABELED AT THE TOP “1997 SOUTHWIND MOTOR HOME.” DO YOU RECOGNIZE THAT?
A: IT WAS DARK WHEN WE WENT TO HIGH VALLEY, SO NOT FROM THAT OCCASION. BUT. . .
Q: DO YOU RECOGNIZE IT FROM A DIFFERENT OCCASION?
A: YES.
Q: WHAT’S THE DIFFERENT OCCASION?
A: AT THE POLICE IMPOUND YARD.
Q: WHERE IS THAT?
A: ON AERO DRIVE.
Q: WHEN DID YOU GO THERE?
A: ON WEDNESDAY, THE 6TH.
Q: WHEN YOU WENT TO THE SKYRIDGE LOCATION, WHICH DOG DID YOU TAKE?
A: I TOOK BOTH DOGS.
Q: HOPI AND CIELO?
A: YES.
Q: DID YOU GO INSIDE THE MOTOR HOME WITH EITHER DOG?
A: NO.
Q: DID YOU SEE ANYBODY GO INSIDE THE MOTOR HOME WITH EITHER DOG?
A: NO.
Q: ON THE SECOND OCCASION YOU WENT WHERE?
A: TO THE IMPOUND YARD ON AERO DRIVE.
Q: WHICH DOGS DID YOU TAKE?
A: I TOOK BOTH DOGS.
Q: ABOUT WHAT TIME OF DAY OR NIGHT WERE YOU THERE, CAN YOU REMEMBER?
A: I BELIEVE IT WAS 9:00 OR 10:00 IN THE MORNING.
Q: AND WERE YOU ASKED TO RUN YOUR DOGS AROUND THAT MOTOR HOME?
A: I WAS ASKED TO SCENT HOPI ON DANIELLE’S SCENT AND TAKE HIM INSIDE THE MOTOR HOME.
Q: DID EITHER OF THE DOGS GET INSIDE THE MOTOR HOME?
A: ONLY HOPI.
Q: AND WOULD YOU DESCRIBE FOR US HOW THE DOG GOT INTO THE MOTOR HOME, WHICH DOOR?
A: THE PASSENGER’S-SIDE DOOR.
Q: DID YOU GO INTO THE MOTOR HOME?
A: I STOOD ON THE SECOND STEP IN THE STAIRWELL.
Q: YOU DIDN’T GO ANY FURTHER THAN THAT?
A: WELL, AFTER —
Q: AT THAT TIME.
A: THE FIRST TIME HE WAS IN THE MOTOR HOME I DID NOT.
Q: WAS THE DOG ON A LEASH?
A: YES.
Q: YOU WERE HOLDING THE LEASH?
A: YES.
Q: WHERE DID THE DOG GO INSIDE THE MOTOR HOME?
A: HE WENT APPROXIMATELY HALFWAY DOWN THE CENTER AISLE, ABOUT EVEN WITH THE END OF THE GALLEY, AND IMMEDIATELY TURNED AROUND AND CAME BACK.
Q: HOW QUICKLY DID THAT TAKE?
MR. BOYCE: OBJECTION. RELEVANCE.
THE COURT: OVERRULED.
YOU CAN ANSWER.
THE WITNESS: ABOUT FIVE SECONDS.
BY MR. DUSEK:
Q: WERE THERE ANY OTHER PEOPLE INSIDE THE MOTOR HOME?
A: NO.
Q: WHAT WAS THE DOG WALKING ON OR MOVING ACROSS?
A: I DON’T RECALL THE FLOOR COVERING.
Q: BUT STRICTLY ON THE FLOOR?
A: YES.
Q: ONCE THE DOG CAME BACK TO YOU, WHAT DID YOU DO?
A: WELL, HE APPEARED THAT HE WANTED TO —
MR. BOYCE: OBJECTION. 352. RELEVANCE.
THE COURT: YES.
YOU’VE ANSWERED THE QUESTION.
NEXT QUESTION.
MR. FELDMAN: MOTION TO STRIKE, PLEASE.
THE COURT: THE JURY IS TO DISREGARD THE LAST PORTION OF THE ANSWER THERE.
NEXT QUESTION.
BY MR. DUSEK:
Q: DID THE DOG GO OUTSIDE?
A: THE DOG WENT OUTSIDE.
Q: DID YOU FOLLOW IT OUTSIDE?
A: YES.
Q: WHAT WAS THE NEXT THING THAT YOU DID?
A: I WENT BACK INSIDE THE MOTOR HOME.
Q: WITH?
A: WITH HOPI.
Q: HOW MUCH TIME DID YOU WAIT BETWEEN?
A: A COUPLE OF MINUTES.
Q: WHEN YOU WENT BACK INSIDE, HOW FAR DID YOU GO?
A: TO THE LANDING JUST ABOVE THE STAIRWELL.
Q: WERE YOU WEARING ANY PROTECTIVE CLOTHING OR GEAR?
A: I WAS WEARING GLOVES AND A HAT.
Q: WHAT TYPE OF HAT?
A: MY REGULAR HAT THAT I WEAR FOR SEARCHING.
Q: WAS THERE A REASON YOU WERE WEARING THAT?
A: TO PROTECT LOOSE HAIRS FROM FALLING OFF MY HEAD.
Q: WHERE DID YOU GET THE GLOVES?
A: I CARRY THEM FOR COLLECTING SCENT ARTICLES.
Q: WHEN YOU WENT IN THE SECOND TIME, DID HOPI GO WITH YOU?
A: YES, HE DID.
Q: WHERE DID HOPI GO?
A: HE JUMPED ON THE SOFA BEHIND THE DRIVER’S SIDE.
Q: AND WHAT DID HOPI DO ONCE HE WAS IN THAT POSITION?
MR. BOYCE: OBJECTION. RELEVANCE. 352.
MS. SCHAEFER: RELEVANCE.
THE COURT: YOU KNOW THE GUIDELINES.
BY MR. DUSEK:
Q: DID THE DOG SIT —
THE COURT: USE A LEADING QUESTION.
BY MR. DUSEK:
Q: DID THE DOG SIT DOWN ON THAT COUCH BEHIND THE MOTOR HOME?
MR. BOYCE: OBJECTION. RELEVANCE. 352.
THE COURT: OVERRULED.
DID THE DOG SIT ON THE COUCH?
THE WITNESS: NO.
BY MR. DUSEK:
Q: DID THE DOG SIT ON SOMETHING?
A: NO.
Q: WHERE WAS THE DOG STANDING?
A: ON THE SOFA.
Q: BEHIND THE MOTOR HOME?
A: BEHIND THE DRIVER’S SIDE.
Q: FOR ABOUT HOW LONG APPROXIMATELY?
A: FIVE SECONDS.
Q: THEN DID THE DOG LEAVE THE MOTOR HOME?
A: YES.
Q: AFTER THAT WAS DONE, DID YOU WORK CIELO?
A: YES, I DID.
Q: DESCRIBE WHAT YOU DID WITH CIELO.
A: I GAVE HIM THE CADAVER COMMAND AND STARTED ON THE PASSENGER’S FRONT CORNER AND PROCEEDED TO SYSTEMATICALLY GO AROUND THE MOTOR HOME POINTING OUT VARIOUS PLACES THAT I WANTED HIM TO CHECK.
Q: WHAT’S THE CADAVER COMMAND?
A: WHAT IS IT OR WHAT TERM DO I USE?
Q: WHAT DO YOU USE?
A: BONES.
Q: AND WHAT DOES THAT COMMUNICATE TO THE DOG?
A: THAT HE — THAT I WANT HIM TO FIND CADAVER SCENT.
Q: AND WHEN YOU SAY YOU POINTED OUT VARIOUS AREAS, WHAT SPECIFICALLY WERE YOU DOING?
A: I WAS POINTING OUT AREAS WHICH I CONSIDERED MIGHT BE DISTRACTING, LIKE THE FENDERS AND THE TIRES, BECAUSE VEHICLES SOMETIMES RUN OVER DEAD ANIMALS, AND THE PARTS OF THE ANIMALS GET SPRAYED ONTO THE FENDERS, AND DOGS TYPICALLY SHOW INTEREST IN THAT PHENOMENON.
Q: SO BY POINTING THOSE AREAS OUT, WHAT WERE YOU TRYING TO DO?
A: SEE IF HE WAS DISTRACTED BY SOMETHING OTHER THAN WHAT HE WAS LOOKING FOR.
Q: WAS HE?
A: NO, HE WAS NOT.
Q: DESCRIBE THEN WHAT YOU DID.
A: BESIDES THAT, I WANTED HIM TO CHECK OUT THE VARIOUS PLACES WHERE SCENT COULD ESCAPE OUT OF THE MOTOR HOME, LIKE THE SEAMS ON THE DOORS AND THE STORAGE COMPARTMENTS. SO EACH TIME I CAME TO ONE OF THOSE, I POINTED TO HIM AND TOLD HIM TO CHECK THAT.
I WENT — THE FIRST ONE I CAME TO WAS THE PASSENGER-SIDE DOOR, AND IT HAD TWO SEAMS. AND THE SECOND ONE WAS SHARED WITH THE STORAGE COMPARTMENT THAT WAS JUST BEHIND THE PASSENGER’S DOOR.
Q: NOW, YOU WERE OUTSIDE THE MOTOR HOME AT THIS POINT?
A: YES, I WAS.
Q: AND YOU TALK ABOUT SEAMS ALLOWING AIR TO GO BACK AND FORTH FROM INSIDE TO OUTSIDE.
A: I ASSUME IT MOSTLY GOES OUT. BUT THERE HAS TO BE AN AIR EXCHANGE.
Q: WHY DO YOU SAY THAT?
MR. BOYCE: OBJECTION. FOUNDATION.
THE COURT: OVERRULED.
YOU CAN ANSWER IT.
THE WITNESS: WHY DO I SAY THAT THERE HAS TO BE AN AIR EXCHANGE?
MR. DUSEK: YES.
THE WITNESS: BECAUSE IF VEHICLES WERE NOT DESIGNED THAT WAY, PEOPLE INSIDE THEM WOULD DIE.
MR. DUSEK: ALL RIGHT.
BY MR. DUSEK:
Q: WHAT HAPPENED AS YOU WERE SHOWING THE DOG THESE SEAMS?
A: AS I CAME TO THE ONE THAT WAS SHARED BY THE PASSENGER’S DOOR AND THE FIRST STORAGE COMPARTMENT, HIS INTENSITY OF SNIFFING AND THE DURATION WAS A LITTLE BIT INCREASED. AS I MOVED TO THE OTHER SIDE OF THE STORAGE COMPARTMENT, IT WAS EVEN MORE INCREASED. AND AS I WAS MOVING TO THE NEXT ONE, HE SWUNG AROUND IN FRONT OF ME AND SAT AND MADE EYE CONTACT WITH ME AND BARKED.
Q: WHAT’S THAT MEAN?
A: THAT’S HIS CADAVER ALERT.
Q: WHICH MEANS WHAT?
A: IT MEANS THAT HE HAS DETECTED CADAVER SCENT.
Q: WHAT DID YOU DO AT THAT POINT?
A: I CONTINUED AROUND THE REST OF THE MOTOR HOME TO SEE IF HE SHOWED ANY OTHER AREAS OF INTEREST.
Q: WHY DID YOU WANT TO CHECK THE REST OF THE MOTOR HOME?
A: TO VERIFY THAT HE WAS NOT DISTRACTED BY ANIMALS.
Q: WHAT HAPPENED?
MR. BOYCE: OBJECTION. RELEVANCE UNLESS THERE WAS EVIDENCE OF ANIMALS.
THE COURT: OVERRULED. OVERRULED. THE ANSWER WILL STAND.
NEXT QUESTION.
BY MR. DUSEK:
Q: WHAT HAPPENED AS YOU TOOK HIM AROUND THE REST OF THE MOTOR HOME?
A: HE CONTINUED TO SNIFF BUT DID NOT SHOW ANY INTEREST OR ALERTS.
Q: DID HE DO ANYTHING ELSE WHILE YOU WERE THERE AT THAT MOTOR HOME AFTER YOU MADE THE ONE LOOP AROUND THE MOTOR HOME?
A: WELL, I ASKED THAT THE DOOR BE OPENED. AND WHEN IT WAS —
MR. BOYCE: OBJECTION. VAGUE AS TO WHAT DOOR.
THE COURT: BE SPECIFIC AS TO THE DOOR, COUNSEL.
BY MR. DUSEK:
Q: WHICH DOOR?
A: THE DOOR WHERE HE HAD ALERTED, THE FIRST DOOR BEHIND THE PASSENGER’S COMPARTMENT.
Q: WHAT HAPPENED?
A: I MEAN BEHIND THE PASSENGER’S DOOR.
HE SHOWED INTEREST BY SNIFFING FOR EXTENDED PERIODS OF TIME ON TWO ARTICLES INSIDE THE STORAGE COMPARTMENT.
Q: DO YOU RECALL WHAT THEY WERE?
A: THERE WAS A SHOVEL, AND THERE WAS SOME SORT OF LAWN FURNITURE THAT I COULD NOT RECOGNIZE BECAUSE IT WAS FOLDED UP.
Q: IS THIS WHERE HE HAD ALERTED THE FIRST TIME?
A: YES.
Q: LET ME GO BACK TO THE EXTERIOR PHOTOGRAPHS OF THE MOTOR HOME IN EXHIBIT 49. DO YOU SEE A PHOTOGRAPH THAT DEPICTS THE SIDE OF THE MOTOR HOME WHERE THE DOG ALERTED?
A: YES.
Q: WHAT LETTERED PHOTOGRAPH?
A: B.
Q: DO YOU SEE THE APPROXIMATE AREA WHERE THE DOG WAS SNIFFING WHEN IT SAT, LOOKED AT YOU, AND BARKED?
A: YES, I DO.
Q: COULD YOU POINT IT OUT, PLEASE.
A: (THE WITNESS COMPLIED.)
Q: THANK YOU, SIR.
LET ME ASK YOU TO PICK UP A BLUE FELT PEN THERE IN FRONT OF YOU. COULD YOU DRAW AN A AT THE LOCATION OF THE ALERT.
A: (THE WITNESS COMPLIED.)
Q: THANK YOU, SIR.
AND YOU DESCRIBED A SHOVEL IN THAT COMPARTMENT WHEN IT WAS OPENED.
A: YES.
Q: LET ME SHOW YOU WHAT’S BEEN MARKED AS COURT’S EXHIBIT 108, SPECIFICALLY THE PHOTOGRAPHS AT THE TOP, A AND B. DO YOU RECOGNIZE WHAT WE HAVE DEPICTED THERE?
A: I DO.
Q: WHAT ARE THEY?
A: THERE’S A SHOVEL AND SOME SORT OF LAWN FURNITURE.
Q: DOES THAT APPEAR TO BE THE SHOVEL AND THE LAWN FURNITURE THAT YOU DESCRIBED FOR US EARLIER?
A: IT DOES.
Q: BY SNIFFING AT THAT LOCATION, DOES THAT MEAN TO YOU AS ITS HANDLER, AS CIELO’S HANDLER, THAT A BODY HAD BEEN IN THAT COMPARTMENT?
A: NOT NECESSARILY.
Q: WHY NOT?
MR. BOYCE: OBJECTION. 352.
THE COURT: OVERRULED.
MR. BOYCE: 801.
THE COURT: YOU MAY ANSWER.
THE WITNESS: I WOULD ASSUME THAT A BODY COULD BE ANY PLACE IN THE MOTOR HOME AND THE SCENT COULD BE EMANATING FROM THAT LOCATION.
BY MR. DUSEK:
Q: WHY DO YOU SAY THAT?
MS. SCHAEFER: OBJECTION. 352.
MR. BOYCE: 352 AGAIN, YOUR HONOR.
THE COURT: DULY NOTED.
MR. FELDMAN: HOW ABOUT SPECULATION. FOUNDATION.
THE COURT: OVERRULED. OVERRULED.
BY MR. DUSEK:
Q: WHY DO YOU SAY THAT?
A: BECAUSE MY EXPERIENCE TEACHES ME THAT SCENT IS ABLE TO MOVE FREELY IN ENCLOSED AREAS.
MR. DUSEK: THANK YOU, SIR.
THE COURT: CROSS-EXAMINATION.

CROSS-EXAMINATION
BY MR. BOYCE:
Q: MR. FRAZEE, I WANT TO DIRECT YOUR ATTENTION AGAIN TO THE MOTOR HOME THAT YOU’VE BEEN REFERRING TO. AND THE TIME THAT YOU SAY THAT OR YOU HAVE TOLD US THAT CIELO ALERTED IN THE AREA OF THE MOTOR HOME ON THAT DIAGRAM.
A: THAT’S CORRECT.
Q: THERE WERE POLICE OFFICERS WITH YOU AT THAT TIME, WEREN’T THERE?
A: YES.
Q: AND AFTER CIELO WAS RUN AROUND THE MOTOR HOME ON FEBRUARY 6TH, YOU TOLD THE POLICE OFFICERS CIELO SHOWED NO POSITIVE REACTION DURING HIS SEARCH, DIDN’T YOU?
A: I DON’T RECALL SAYING THAT.
Q: YOU DON’T RECALL? DO YOU MEAN TO TELL THIS JURY THAT YOU DIDN’T DO IT OR YOU DON’T REMEMBER?
MR. DUSEK: OBJECTION. ARGUMENTATIVE. TONE.
THE COURT: MR. BOYCE, CALM DOWN. TAKE A DEEP BREATH.
MR. BOYCE: SORRY, YOUR HONOR.
THE COURT: LET’S JUST ASK QUESTIONS.
SUSTAINED.
NEXT QUESTION.
BY MR. BOYCE:
Q: DO YOU MEAN TO TELL THE JURY THAT YOU DIDN’T TELL A POLICE OFFICER THAT AT THE TIME THAT YOU RAN CIELO AROUND THAT MOTOR HOME OR ARE YOU SAYING THAT YOU DON’T REMEMBER?
A: I DON’T REMEMBER.
Q: SO YOU COULD HAVE TOLD A POLICE OFFICER THAT CIELO SHOWED NO POSITIVE REACTION DURING THE SEARCH OF THAT AREA YOU’VE JUST INDICATED?
A: I DOUBT THAT I WOULD SAY THAT.
Q: WELL, YOU SAY YOU DOUBT. DOES THAT SAY — ARE YOU MEANING TO COMMUNICATE THAT YOU DON’T REMEMBER OR YOU DIDN’T SAY THAT?
A: IT WOULD BE UNLIKELY THAT I WOULD SAY THAT BECAUSE THAT ISN’T WHAT HE DID.
Q: ARE YOU TELLING THIS JURY THAT YOU DIDN’T TELL A POLICE OFFICER THAT CIELO SHOWED NO POSITIVE REACTION DURING THAT SEARCH?
MR. DUSEK: OBJECTION. ASKED AND ANSWERED.
THE WITNESS: YES.
THE COURT: HE’S ANSWERED IT.
BY MR. BOYCE:
Q: THE GENTLEMAN MR. DUSEK THAT ASKED YOU THE QUESTIONS ON DIRECT EXAMINATION, HE GAVE YOU SOME DOCUMENTS TO REVIEW IN THIS CASE, DIDN’T HE?
A: HE GAVE ME A TRANSCRIPT OF MY TESTIMONY IN THE MOTION HEARING.
Q: OKAY.
AND THAT WAS YOUR TESTIMONY IN THIS COURT ABOUT THREE WEEKS AGO?
A: YES.
Q: AND YOU WERE READING THAT TESTIMONY OUT IN THE HALLWAY HERE, WEREN’T YOU?
A: YES.
Q: OVER THE LAST COUPLE DAYS AS YOU WERE WAITING TO TESTIFY.
A: THAT’S CORRECT.
Q: DID MR. DUSEK SHOW YOU ANY PHOTOGRAPHS BEFORE YOU TESTIFIED IN COURT?
A: YES.
Q: WHERE DID HE SHOW YOU THESE PHOTOGRAPHS?
A: IN HIS OFFICE.
Q: WHEN DID HE SHOW YOU THE PHOTOGRAPHS?
A: PRIOR TO THAT PREVIOUS TESTIMONY.
Q: WHEN YOU SAY THE PREVIOUS TESTIMONY, DO YOU MEAN THE TESTIMONY AT THE MOTION HEARING OR YOUR TESTIMONY TODAY?
A: AT THE MOTION HEARING.
Q: DID HE SHOW YOU ANY PHOTOGRAPHS BETWEEN YOUR TESTIMONY AT THE MOTION HEARING AND TODAY?
A: HE DID NOT.
Q: AND WHAT PHOTOGRAPHS DID HE SHOW YOU?
A: AN ASSORTMENT OF PHOTOGRAPHS FROM THE EXTERIOR OF THE MOTOR HOME.
Q: DID THEY INCLUDE THE PHOTOGRAPHS ON THE DIAGRAM MARKED EXHIBIT 49?
A: I DON’T RECALL BECAUSE THEY WERE LIKE THREE-BY-FIVE.
Q: WERE THEY PHOTOGRAPHS OF THE MOTOR HOME?
A: THAT’S MY RECOLLECTION.
Q: OTHER THAN THE TRANSCRIPT THAT HE SHOWED YOU, DID HE SHOW YOU ANY REPORTS?
A: NO.
Q: YOU ARE A VOLUNTEER FOR THIS SHERIFF’S SEARCH AND RESCUE, IS THAT CORRECT?
A: THAT’S CORRECT.
Q: AND TO BE A VOLUNTEER FOR THE SHERIFF’S SEARCH AND RESCUE, YOU HAVE TO COMPLETE CERTAIN TRAINING, DON’T YOU?
A: THAT’S CORRECT.
Q: AND ASIDE FROM THE IN-FIELD TRAINING WHICH YOU’VE TOLD MR. DUSEK ABOUT, YOU HAVE TO COMPLETE A COURSE, A TRAINING, LIKE A CLASSROOM, IS THAT RIGHT?
A: YOU HAVE TO COMPLETE AN APPRENTICESHIP PERIOD WHICH I BELIEVE IS AT LEAST SIX MONTHS. THERE’S — THERE ARE SIGNOFFS THAT MEASURE YOUR PROGRESS. BUT THERE IS NO SPECIFIED COURSE THAT YOU HAVE TO TAKE.
Q: WELL, YOU TOOK A COURSE CALLED MANAGING THE SEARCH FUNCTION, DIDN’T YOU?
A: YES.
Q: DO YOU RECALL THAT COURSE?
A: YES, I DO.
Q: AND YOU TOOK THAT COURSE IN ORDER TO BE A VOLUNTEER FOR SHERIFF’S SEARCH AND RESCUE, DIDN’T YOU?
A: IT’S NOT A NECESSITY TO TAKE THAT COURSE. I TOOK IT BECAUSE I WAS INTERESTED.
Q: ARE YOU FAMILIAR WITH THE BASIC CANINE HANDLING ACADEMY?
A: NO, I’M NOT.
Q: YOU’RE NOT AWARE THAT SAN DIEGO POLICE OFFICERS WHO QUALIFY TO BE CANINE HANDLERS HAVE TO ATTEND THAT COURSE.
A: I’M NOT AWARE OF THAT.
Q: YOU’RE NOT AWARE THAT’S 320 HOURS OF CLASSROOM TRAINING, THEN?
A: THAT’S CORRECT.
Q: AND THAT YOU HAVE TO HAVE 960 HOURS TO GRADUATE?
MR. DUSEK: OBJECTION. NO FOUNDATION. DOESN’T KNOW ANYTHING ABOUT IT.
THE COURT: IF YOU KNOW ABOUT IT, YOU MAY ANSWER; OTHERWISE, INDICATE YOU DON’T. YOU MAY ANSWER.
THE WITNESS: I DO NOT KNOW.
BY MR. BOYCE:
Q: ARE YOU FAMILIAR WITH ANY OF THE REQUIREMENTS THAT A POLICE OFFICER HAS TO COMPLETE TO BE A CANINE HANDLER?
A: NO, I’M NOT.
Q: BEFORE THIS CASE YOU’VE NEVER TESTIFIED IN COURT, HAVE YOU?
A: NOT BEFORE THE MOTION HEARING.
Q: YOU’VE NEVER QUALIFIED AS AN EXPERT WITNESS, HAVE YOU?
A: I HAVE NOT TESTIFIED AS — IN A CRIMINAL TRIAL.
Q: YOU’VE NEVER QUALIFIED AS AN EXPERT, HAVE YOU?
A: NOT THAT I RECALL.
Q: YOU DON’T REMEMBER WHETHER YOU HAVE OR NOT?
A: WELL, IN MY PREVIOUS BUSINESS I WAS — I HAVE TESTIFIED IN COURT. I BELIEVE I WAS TESTIFYING AS AN EXPERT WITNESS. BUT I DON’T THINK THAT’S WHAT YOU’RE ASKING ME ABOUT.
Q: NO. I’M ASKING ABOUT DOGS.
A: I’VE NOT TESTIFIED AS AN EXPERT WITNESS REGARDING DOGS.
Q: OR QUALIFIED AS AN EXPERT, HAVE YOU?
A: THAT’S CORRECT.
Q: YOU’VE TOLD US ABOUT THE DIFFERENCE BETWEEN AN AREA SEARCH DOG AND A SCENT-TRAINED DOG. AND CIELO IS AN AREA SEARCH DOG, ISN’T HE?
A: THAT’S CORRECT.
Q: IS IT HE OR SHE?
A: THEY ARE BOTH HE.
Q: CIELO IS WHAT KIND OF DOG?
A: VIZSLA.
Q: YOU’VE DESCRIBED CIELO AS A RUST-COLORED DOG.
A: GOLDEN RUST, YES.
Q: GOLDEN RUST. THAT WOULD INCLUDE SOME BROWN IN THE COAT I ASSUME.
A: I’M NOT FAMILIAR WITH THE COLORS THAT MAKE UP RUST.
Q: WELL, DOES CIELO APPEAR TO HAVE SOME BROWN IN HIS COAT?
A: SOME PEOPLE MIGHT SEE IT AS BROWN.
Q: AND AN AREA SEARCH DOG IS TRAINED TO WORK OFF A LEASH, NOT ON A LEASH, ISN’T THAT CORRECT?
A: THAT’S CORRECT.
Q: IT WOULD BE IMPROPER TO HAVE AN AREA SEARCH DOG WORKING ON A LEASH OR UNDER SOME CONTROL, WOULDN’T IT?
A: NO. IF WE HAVE TO WORK AN AREA THAT’S NEAR A FREEWAY, WE PREFER TO HAVE THEM ON A LEASH.
Q: WELL, OTHER THAN SAFETY CONCERNS FOR THE DOG OR THE HANDLER, THE DOG IS PER YOUR TRAINING SUPPOSED TO WORK OFF A LEASH.
A: YES.
Q: YOU’RE NOT SUPPOSED TO CONTROL HIM, ARE YOU?
A: THAT’S CORRECT.
Q: YOU’RE NOT SUPPOSED TO LEAD HIM SOMEWHERE, ARE YOU?
A: NO.
Q: AND YOU’VE TOLD US THAT CARDA OR THE CALIFORNIA RESCUE DOG ASSOCIATION, THAT’S THE CERTIFYING AGENCY, ISN’T IT?
A: THAT’S CORRECT.
Q: AND YOU MUST BE — YOU AND THE DOG MUST BE CERTIFIED TO VOLUNTEER FOR THE SHERIFF FROM SEARCH AND RESCUE.
A: THAT’S CORRECT.
Q: AND TO BE CERTIFIED, THE DOG AND IN THIS CASE CIELO MUST PERFORM A TRAINED ALERT, IS THAT RIGHT?
A: YES.
Q: AND THE TRAINED ALERT IS SOME BEHAVIOR THAT TELLS THE HANDLER THE DOG HAS MADE A FIND.
A: THAT’S CORRECT.
Q: AND YOU TRAINED CIELO, IS THAT RIGHT?
A: YES.
Q: AND I BELIEVE YOU’VE TOLD US THAT CIELO’S ALERT IS TO SIT AND ALSO NOW TO BARK.
A: THAT’S CORRECT.
Q: HAVE YOU HEARD OF A TERM CALLED HANDLER BIAS?
A: YES.
Q: WHAT IS HANDLER BIAS?
A: THAT WOULD BE WHEN A HANDLER THINKS THAT A SUBJECT IS IN A CERTAIN LOCATION AND — ACTUALLY A BETTER EXAMPLE WOULD BE IF A HANDLER SAW A SUBJECT AND THEN DIRECTED THE DOG TO MAKE AN ALERT.
Q: IT’S WHERE A HANDLER INFLUENCES THE DOG’S BEHAVIOR TO DO WHAT THE HANDLER IS ASKING, IS THAT RIGHT? WOULD THAT BE A DEFINITION?
A: THAT DEFINITION IS A LITTLE BROAD BECAUSE EVERY TIME WE SEARCH WE’RE INFLUENCING THE DOG’S BEHAVIOR TO GET IT TO DO WHAT WE WANT IT TO DO.
Q: SO HANDLER BIAS WOULD BE EVEN A MORE DIRECT ATTEMPT TO GET THE DOG TO DO WHAT YOU WANTED IT TO DO, THEN?
A: I THINK HANDLER BIAS WOULD BE MORE ON THE HANDLER WHEN IT HAS SOME PRE-CONCEIVED IDEA OF WHERE THE OBJECT OF THE DOG IS LOOKING FOR WILL BE FOUND.
Q: IN OTHER WORDS, WHERE THE HANDLER’S TAKING THE DOG TO WHERE THE HANDLER THINKS THE ITEM OR THE WHATEVER THE DOG IS LOOKING FOR SHOULD BE FOUND, IS THAT RIGHT?
A: ASSUMING THE HANDLER KNOWS.
Q: AND YOU ALSO BELIEVE THAT THE DOG IN THIS CASE, WELL, CIELO OR HOPI, CAN BE INFLUENCED BY THE HANDLER’S EMOTIONS, CAN’T THEY?
A: LIVING WITH THE DOGS, I’VE CERTAINLY SEEN THEM BE INFLUENCED BY OUR EMOTIONS. SO I GUESS THE ANSWER TO THAT IS YES.
Q: AND ON FEBRUARY 6TH YOU’VE TOLD US YOU BROUGHT YOUR DOGS TO THE POLICE IMPOUND AREA WHERE THE MOTOR HOME IN EXHIBIT 49 WAS LOCATED. IS THAT RIGHT?
A: YES.
Q: AND YOU ASSUMED AT THAT TIME THAT DAVID WESTERFIELD WAS A SUSPECT BECAUSE HIS MOTOR HOME WAS IN THE POLICE IMPOUND YARD, ISN’T THAT CORRECT?
A: YES.
Q: AND INSTEAD OF RELEASING CIELO AND LETTING CIELO SEARCH FREELY, YOU SHOWED CIELO SPECIFIC LOCATIONS AROUND THAT MOTOR HOME, IS THAT CORRECT?
A: THAT’S CORRECT.
Q: AND YOU HAVE TOLD US THAT IN THE PHOTOGRAPH YOU’VE MARKED AS EXHIBIT B CIELO SAT AND ALERTED AT THIS COMPARTMENT, IS THAT RIGHT?
A: THAT’S CORRECT.
Q: AND YOU’VE MARKED THAT WITH AN A, IS THAT RIGHT?
A: YES.
Q: YOU ALSO TOLD US THAT WHEN THE COMPARTMENT WAS OPENED, CIELO SNIFFED THE SHOVEL. IS THAT RIGHT?
A: YES.
Q: AND SNIFFED THE SHOVEL FOR ABOUT FIVE SECONDS THAT WAS FOUND IN THE COMPARTMENT, IS THAT RIGHT?
A: I BELIEVE MY TESTIMONY WAS FIFTEEN SECONDS TOTAL TIME FOR THE WHOLE COMPARTMENT.
Q: BUT FIVE SECONDS FOR THE SHOVEL I BELIEVE YOU TESTIFIED. IS THAT CORRECT?
A: I DON’T RECALL.
Q: WELL, FIRST OF ALL, DO YOU HAVE AN INDEPENDENT RECOLLECTION OF WHAT YOU TESTIFIED TO? I GUESS THE ANSWER IS NO SINCE YOU JUST SAID I DON’T RECALL.
WOULD IT ASSIST YOU TO SEE —
A: I AGREE THAT YOUR STATEMENT IS CORRECT.
Q: OKAY.
SO IT WAS ABOUT FIVE SECONDS THAT CIELO SNIFFED THE SHOVEL?
A: MY RECOLLECTION IS THAT HE SNIFFED IT FOR ABOUT FIVE SECONDS AND THEN SNIFFED THE OTHER OBJECT FOR ABOUT FIVE SECONDS. AND THEN SNIFFED THE SHOVEL AGAIN FOR ABOUT FIVE SECONDS.
Q: OKAY.
AND YOU TOOK CIELO AROUND THE REST OF THE MOTOR HOME AFTER THIS ALERT THAT YOU’VE TOLD US ABOUT. AND THERE WERE NO OTHER ALERTS, WERE THERE?
A: THAT’S CORRECT.
Q: LAW ENFORCEMENT WAS WITH YOU AT ALL TIMES WHILE YOU AND THE DOGS WERE AT THE MOTOR HOME, WEREN’T THEY?
A: YES. WELL, THEY DID NOT GO INSIDE THE MOTOR HOME WHEN I DID.
Q: WELL, WHILE YOU WERE OUTSIDE THE MOTOR HOME, THEY WERE AROUND, WEREN’T THEY?
A: YES.
Q: AND IF YOU — YOU TOLD US I BELIEVE — WELL, IF CIELO HAD DEMONSTRATED A CARDA OR A CERTIFIED ALERT, YOU WOULD HAVE IMMEDIATELY NOTIFIED LAW ENFORCEMENT, WOULDN’T YOU?
A: I BELIEVE I TESTIFIED AFFIRMATIVE TO THAT QUESTION. I DON’T BELIEVE I EVER SAID THAT.
Q: YOU TESTIFIED AFFIRMATIVE TO THAT QUESTION. IN OTHER WORDS, IN YOUR PREVIOUS TESTIMONY YOU ANSWERED YES TO THAT QUESTION, IS THAT CORRECT?
A: WHEN SOMEBODY ASKED IF I WOULD HAVE TOLD THEM, I SAID YES.
Q: SOMEBODY WAS MR. FELDMAN, WASN’T IT?
A: YES.
Q: AND HE ASKED YOU, SIR, IS IT THE CASE THAT IF EITHER HOPI OR CIELO HAD DEMONSTRATED A CARDA ALERT, YOU WOULD HAVE IMMEDIATELY NOTIFIED LAW ENFORCEMENT. AND YOU ANSWERED: LAW ENFORCEMENT WAS WITH ME AT ALL TIMES. IS THAT CORRECT?
A: THAT’S CORRECT.
Q: AND THEN HE ASKED YOU: YOU WOULD HAVE COMMUNICATED THAT FACT TO LAW ENFORCEMENT, IS THAT RIGHT. AND YOU ANSWERED: YES. IS THAT CORRECT?
A: YES.
Q: AND YOU WERE TESTIFYING UNDER OATH AT THIS HEARING THREE WEEKS AGO JUST LIKE YOU ARE TODAY.
A: YES. THAT’S CORRECT.

Q: YOU WERE TELLING THE TRUTH, WEREN’T YOU?
A: TO THE BEST OF MY ABILITY.
Q: AND THAT DAY WHEN YOU WENT TO THAT IMPOUND YARD WITH YOUR DOGS, SPECIFICALLY CIELO, IT WAS TO SEE IF CIELO WOULD GIVE A TRAINED ALERT, CORRECT?
A: YES.
Q: AND IF CIELO GAVE A TRAINED ALERT, THAT IS IMPORTANT TO YOU, ISN’T IT?
A: YES.
Q: IT MEANS THE DOG IS INDICATING HE FOUND WHAT YOU BROUGHT HIM THERE TO FIND, RIGHT?
A: YES.
Q: AND THE FIRST TIME YOU TOLD ANYONE CIELO MADE AN ALERT ON THE STORAGE COMPARTMENT OF THE MOTOR HOME WAS WEEKS AFTER FEBRUARY 6TH, WASN’T IT?
A: IT COULD HAVE BEEN.
Q: WELL, WHEN YOU WERE PREVIOUSLY ASKED THIS QUESTION, WHEN YOU WERE ASKED AT THE PREVIOUS HEARING WHEN THE FIRST TIME YOU TOLD ANYBODY THAT THERE WAS WHAT YOU’VE DESCRIBED AS A POTENTIAL ALERT TO THE STORAGE COMPARTMENT, YOU STATED I DON’T RECALL, IS THAT CORRECT?
A: YES.
Q: AND THEN YOU WERE ASKED WAS IT WEEKS AFTER THE EVENT, SHORTLY AFTER THE EVENT, WITHIN THE PAST TWO WEEKS. AND YOU TESTIFIED WEEKS AFTER.
A: OKAY.
Q: IS THAT CORRECT?
A: YES.
Q: AND YOU WERE TESTIFYING AGAIN TRUTHFULLY, WEREN’T YOU?
A: YES.
Q: JUST AS YOU’RE TESTIFYING TODAY BEFORE THIS JURY, CORRECT?
A: YES.
Q: AND AT THAT TIME WEEKS LATER WHEN YOU CLAIM YOU REPORTED YOUR OBSERVATIONS OF CIELO’S BEHAVIOR, YOU DIDN’T REPORT THEM TO LAW ENFORCEMENT BUT YOU REPORTED THEM TO CIELO’S BREEDER IN NEW MEXICO, DIDN’T YOU? THAT’S WHAT YOU TOLD US AT THE EARLIER HEARING, RIGHT?
A: YES.
(DISCUSSION OFF THE RECORD BETWEEN MR. BOYCE
AND MR. FELDMAN.)
BY MR. BOYCE:
Q: WHEN YOU SPOKE WITH THIS — YOUR BREEDER IN NEW MEXICO SEVERAL WEEKS AFTER FEBRUARY 6TH, THERE WEREN’T ANY POLICE OFFICERS AROUND, WERE THERE?
A: NO.
(DISCUSSION OFF THE RECORD BETWEEN MR. BOYCE
AND MR. FELDMAN.)
MR. BOYCE: NOTHING ELSE, YOUR HONOR.
THE COURT: ANYTHING FURTHER, MR. DUSEK?

REDIRECT EXAMINATION
BY MR. DUSEK:
Q: WHY DID YOU CALL THE BREEDER AND LET HIM KNOW?
A: IT WAS A HER. I DIDN’T CALL HER; I SENT HER AN E-MAIL
Q: WHY DID YOU DO IT?
A: BECAUSE I THOUGHT SHE WOULD BE PROUD.
Q: DID I ALSO CALL YOU AND ASK YOU IF THE DOG HAD ALERTED?
A: YES.
Q: DID YOU TELL ME?
A: YES.
Q: DID YOU COME TO COURT AND DESCRIBE WHAT YOU SAID HERE IN COURT ON AN EARLIER OCCASION?
A: YES, I DID.
MR. DUSEK: THANK YOU, SIR.
THE COURT: ANYTHING FURTHER, MR. BOYCE?
MR. BOYCE: YES, YOUR HONOR.

RECROSS-EXAMINATION
BY MR. BOYCE:
Q: YOU CALLED THE BREEDER IN NEW MEXICO BECAUSE YOU WEREN’T SURE WHAT THE REACTION WAS, ISN’T THAT TRUE?
A: NO.
Q: AND THIS IS THE FIRST TIME THAT YOU TOLD ANYBODY THAT CIELO HAD ALERTED.
A: I DON’T RECALL.
Q: BUT YOU RECALL TALKING TO THE BREEDER.
A: I RECALL SENDING HER AN E-MAIL.
Q: AND THAT’S MARIA ZUCONI, IS THAT CORRECT?
A: YES.
Q: AND YOU HAVE A SPECIFIC RECOLLECTION OF TALKING TO THE BREEDER.
MR. DUSEK: MISSTATES THE EVIDENCE.
THE COURT: YOU KEEP USING THE WORD TALK, COUNSEL. REPHRASE YOUR QUESTION.
BY MR. BOYCE:
Q: E-MAIL. I’M SORRY. YOU HAVE A SPECIFIC RECOLLECTION OF E-MAILING THE BREEDER.
A: YES.
Q: YOU DON’T HAVE ANY SPECIFIC RECOLLECTION OF TALKING TO THE POLICE, DO YOU?
A: AT THE TIME MY UNIT LIEUTENANT WAS THERE WHO WAS THE ONE WHO WAS MY EVALUATOR ON MY CADAVER TEST. SHE WAS TALKING WITH THE POLICE. I ASSUMED THAT SHE KNEW WHAT MY DOG’S ALERT IS SINCE SHE GAVE ME THE TEST. SO I ASSUMED THAT SHE TOLD THEM THAT HE HAD ALERTED.
Q: BUT YOU NEVER — DO YOU REMEMBER THE POLICE — DO YOU REMEMBER WHAT YOU SAID TO THE POLICE, THOUGH? YOU TOLD THE POLICE THAT YOUR DOG DID NOT ALERT.
A: I DON’T RECALL TELLING THE POLICE THAT. I DON’T THINK I DID.
Q: AND WHO IS YOUR LIEUTENANT?
A: ROSEMARY REDDA.
Q: DID SHE DO A REPORT IN THIS CASE?
A: THE POLICE DID THE REPORT.
Q: DID THEY DO A REPORT OF THIS ALLEGED ALERT ON FEBRUARY 6TH?
MR. DUSEK: OBJECTION. CALLS FOR SPECULATION.
THE WITNESS: I DON’T KNOW.
THE COURT: HE SAYS I DON’T KNOW.
NEXT QUESTION.
BY MR. BOYCE:
Q: HAVE YOU BEEN SHOWN ANY REPORT BY ANYONE OF AN ALERT BY CIELO AS YOU’VE DESCRIBED HERE ON FEBRUARY 6TH?
A: I HAVE NOT.
Q: AND TODAY IS THE FIRST TIME THAT YOU’VE EVER TESTIFIED OR TOLD ANYONE IN COURT THAT YOU TOLD YOUR LIEUTENANT THAT THERE WAS AN ALERT, ISN’T THAT RIGHT?
A: I DID NOT TESTIFY TO THAT TODAY. I SAID SHE OBSERVED MY DOG. I DON’T KNOW WHAT SHE TOLD THE POLICE.
Q: SO YOU DIDN’T TELL YOUR LIEUTENANT THAT THERE WAS AN ALERT EITHER THEN, DID YOU?
A: I DIDN’T FEEL IT WAS NECESSARY.
(DISCUSSION OFF THE RECORD BETWEEN MR. BOYCE
AND MR. FELDMAN.)
BY MR. BOYCE:
Q: WHERE IS THE E-MAIL?
A: I BELIEVE I HAVE A COPY OF WHAT I SENT ON MY COMPUTER.
Q: HAVE YOU PROVIDED THAT TO THE DISTRICT ATTORNEY?
A: I HAVE NOT.
MR. BOYCE: THANK YOU.
THE COURT: ANYTHING FURTHER?
MR. DUSEK: NO, YOUR HONOR.
THE COURT: IS THIS WITNESS TO BE EXCUSED?
MR. DUSEK: YES.
MR. BOYCE: SUBJECT TO RECALL, YOUR HONOR.
THE COURT: ALL RIGHT. SUBJECT TO RECALL.
MR. FRAZEE, YOU ARE DONE WITH YOUR TESTIMONY NOW. PLEASE REMEMBER YOU’RE UNDER AN ADMONITION NOT TO DISCUSS YOUR TESTIMONY UNTIL THE MATTER IS CONCLUDED. OKAY?
THE WITNESS: YES.
THE COURT: THANKS FOR COMING IN.
(THE WITNESS WAS EXCUSED.)
THE COURT: ALL RIGHT.
MR. DUSEK.
MR. DUSEK: I THINK THAT CONCLUDES THE TESTIMONY FOR TODAY, YOUR HONOR.
THE COURT: ALL RIGHT. AND TODAY IS THE ROAD TRIP.
MR. DUSEK: IT IS. AND I — THERE PROBABLY OUGHT TO BE SOME COMMUNICATION BEFORE WE GO.
THE COURT: RIGHT.
ALL RIGHT, LADIES AND GENTLEMEN, THE TESTIMONY IS CONCLUDED FOR TODAY. WE WILL, HOWEVER, BE DOING OUR SITE VISIT, IF YOU WILL, AT THE MOTOR HOME. LET ME EXPLAIN TO YOU HOW THIS IS GOING TO WORK.
NUMBER ONE, THOSE OF YOU THAT WANT TO TAKE YOUR NOTEBOOK AND PEN WITH YOU BECAUSE YOU FEEL YOU MIGHT WANT TO MAKE SOME OBSERVATIONS, FEEL FREE TO DO THAT. THEY WILL BE COLLECTED FROM YOU, HOWEVER, ONCE THE DAY IS CONCLUDED.
WHAT IS GOING TO HAPPEN WITH YOU FOLKS IS YOU’RE GOING TO GO ON AN EXTENDED BREAK, PROBABLY UNTIL 3:00 O’CLOCK. AND I’M INSTRUCTING YOU NOW TO ALL MEET AT THE JURY OVERFLOW ROOM. IN OTHER WORDS, GO OVER TO THE HALL OF JUSTICE. WHEN YOU’RE LOOKING INTO THE JURY LOUNGE, THE ROOM ON YOUR LEFT IS CALLED THE OVERFLOW ROOM. THAT WILL BE OPEN AND ONLY FOR YOU. WE WILL ALL MEET IN THERE. WE’LL COUNT NOSES. AND THEN AS A GROUP WE WILL GO TO THE LOCATION WHERE THE MOTOR HOME IS.
I’M GOING TO DISCUSS WITH COUNSEL RIGHT NOW MY THOUGHT ON HOW WE SHOULD HANDLE THE WAY YOU GET TO SEE THE MOTOR HOME. BUT, AT ANY RATE, WE’LL MEET YOU. WE’LL TAKE YOU TO THE MOTOR HOME. AND EITHER IN GROUPS OF ONE, TWO, OR THREE WE’LL ALLOW YOU TO GO IN, OBVIOUSLY NOT TOUCH ANYTHING, MAKE ANY NOTES YOU WANT, COLLECT YOUR NOTEBOOKS, AND THEN YOU’LL BE DONE FOR THE DAY.
AND THEN THE WAY THINGS ARE LOOKING LIKE RIGHT NOW, WE HAVE NOTHING FOR TOMORROW INVOLVING THE JURY, SO THAT YOU WILL BE OFF TOMORROW. AND REMEMBER MONDAY I’M CONDUCTING ANOTHER HEARING THAT HAS NOTHING TO DO WITH YOU. SO AS A PRACTICAL MATTER, YOU WILL NOT BE NEEDED AS JURORS IN THIS MATTER UNTIL TUESDAY MORNING. SO THAT’S THE WAY IT SHAPES UP RIGHT NOW.
SO WHAT I AM GOING TO DO IS PUT YOU FOLKS ON A BREAK WITH THE INSTRUCTION THAT YOU REPORT TO THE JURY LOUNGE. AND REMEMBER TO TAKE YOUR NOTEBOOK IF YOU FEEL YOU WANT TO MAKE NOTES REGARDING YOUR OBSERVATIONS.
PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR WITH ANY OTHER PERSONS NOR FORM OR EXPRESS ANY OPINIONS ON THE MATTER UNTIL IT IS SUBMITTED TO YOU.
YES, JUROR 13.
JUROR NUMBER 13: ARE WE COMING BACK HERE?
THE COURT: NO. YOU WILL BE DIRECT RELEASED, SO TO SPEAK, TO GO ON HOME OR GO TO WORK OR WHATEVER YOU WANTED TO DO DIRECTLY FROM WHERE WE’LL BE SEEING THE MOTOR HOME.
ANY OTHER QUESTIONS AS IT RELATES TO THE VISITATION? JUROR 9.
JUROR NUMBER 9: I HAVE TO GET TO THE TROLLEY.
THE COURT: WE’RE NOT TAKING YOU ANYWHERE EXOTIC. YOU ARE GOING TO BE, FOR LACK OF A BETTER WORD, VERY CLOSE.
ALL RIGHT. SO WE ARE NOT TAKING YOU — WE ARE NOT GOING TO PILE YOU ALL ON A BUS AND TAKE YOU OUT TO POWAY.
ALL RIGHT. ANY OTHER QUESTIONS REGARDING VISITATION? (NO RESPONSE.)
THE COURT: OKAY.
AGAIN, JUST A REMINDER. IF YOU NEED YOUR NOTEBOOKS OR WANT THOSE NOTEBOOKS, CARRY THEM WITH YOU, AND WE WILL COLLECT THEM AT SITE. WE WILL SEE YOU IN THE JURY OVERFLOW ROOM AT 3:00 O’CLOCK, PLEASE. AT 3:00 O’CLOCK.
(THE JURY RECESSED AT 2:38 O’CLOCK, P.M.)
(THE FOLLOWING OCCURRED OUT OF THE PRESENCE OF THE
JURY:
THE BAILIFF: YOUR HONOR, MISS CUMMINS IS HERE.
THE COURT: ALL RIGHT. HAVE HER COME IN.
THE RECORD SHOULD REFLECT JURORS AND ALTERNATES HAVE LEFT THE COURTROOM.
MISS CUMMINS IS HERE, HAVING FILED A REQUEST FOR AN IMMEDIATE HEARING ON WHY THE PRESS SHOULDN’T ATTEND THE VISIT TO THE MOTOR HOME.
YOU MAY MAKE YOUR RECORD, MISS CUMMINS.
MS. GUYLYN CUMMINS: THANK YOU, YOUR HONOR.
ON BEHALF OF COPLEY PRESS, THEY WOULD ASK THAT A REPRESENTATIVE OF THE PRESS BE ALLOWED TO GO ON THE INSPECTION. OBVIOUSLY THIS IS CRITICAL EVIDENCE. AND UNDER THE FIRST AMENDMENT THE PRESS IS ENTITLED TO BASICALLY SEE ALL OF THE TRIAL PROCEEDINGS. SO WE WOULD REQUEST, YOUR HONOR, THAT WE BE AT LEAST ALLOWED TO HAVE ONE MEDIA JOURNALIST ACCOMPANY THE JURORS ON THE INSPECTION.
THE COURT: EITHER COUNSEL DESIRE TO BE HEARD ON THE MATTER?
MS. CUMMINS: IF YOUR HONOR DECLINES TO DO SO, WE WOULD ALSO ASK THAT YOU MEET THE COMPELLING-INTEREST TEST.
MR. DUSEK: I DO NOT SEE ANY NEED FOR THEM TO BE THERE AS THE JURORS GO THROUGH. I WOULD HAVE NO QUARREL WITH ALLOWING THEM TO SEE IT AFTERWARDS.
THE COURT: MR. FELDMAN?
MR. FELDMAN: SUBMITTED.
THE COURT: ALL RIGHT.
THE REQUEST IS DENIED. AND, FRANKLY, MISS CUMMINS, I DON’T THINK I HAVE TO MAKE A COMPELLING-REASONS TEST. THE FACT IS THIS IS A JURY VISITING AN ITEM OF EVIDENCE. I HAVE DONE NOW FOUR OF THEM, ALL OF THEM INVOLVING HOMICIDES. NEVER HAD THE PRESS PRESENT. AND, FRANKLY, DON’T BELIEVE THEY HAVE A RIGHT TO BE THERE NOR FILM IT NOR HAVE A POOL NOR HELICOPTERS NOR ALL OF THE OTHER THINGS THAT I HAVE BEEN REQUESTED. YOUR REQUEST IS DENIED.
ALL RIGHT. LET’S TALK ABOUT HOW YOU WANT TO HANDLE IT. MY SUGGESTION WOULD BE THAT BECAUSE OF TIME, I MEAN NOT TIME, BUT CONSTRAINTS RELATIVE TO THE SIZE OF THE MOTOR HOME, THAT THEY GO IN IN LIMITED NUMBERS PURSUANT TO THEIR NUMBER, AND THEN BASICALLY THAT’S IT.
MR. DUSEK: THAT SOUNDS FINE, YOUR HONOR.
LET ME AT LEAST EXPLAIN WHAT HAS BEEN DONE. I MEAN IT’S INSIDE THE LOADING DOCK OVER IN THE HALL OF JUSTICE, AND IT’S TOTALLY SEALED FROM THE OUTSIDE. CURRENTLY WE HAVE HAD PLACARDS PLACED AT THE LOCATIONS WHERE THE PHYSICAL PIECES OF EVIDENCE HAVE BEEN LOCATED. I’VE BEEN ADVISED THAT THEY HAVE THE EVIDENCE NUMBER AND EITHER HAIR, BLOOD, FIBER, OR FINGERPRINTS. I BELIEVE IT’S TAPED TO THAT LOCATION. I BELIEVE THE LOCATION WAS DETERMINED BY THE LAW ENFORCEMENT PERSONNEL THAT LIFTED THOSE ITEMS. THAT WOULD BE KAREN LEALCALA, JEFF GRAHAM, AND TANYA DULANEY.
I WOULD ASK THAT THE — EACH JUROR BE ALLOWED TO OPEN THE PASSENGER-SIDE DOOR AND THEN WALK THROUGH THE MOTOR HOME AT THEIR LEISURE. PERHAPS ONE AT A TIME WOULD BE BEST.
THE COURT: ALL RIGHT. IS THERE A PARTICULAR REASON YOU WANT EACH OF THEM TO OPEN THE DOOR?
MR. DUSEK: BECAUSE THERE IS CERTAINLY ALLEGATIONS THAT A SEVEN-YEAR-OLD CHILD WAS ABLE TO GET IN THERE ON HER OWN.
THE COURT: ALL RIGHT.
MR. FELDMAN.
MR. FELDMAN: YOUR HONOR, WE DON’T — WE’VE ALREADY MADE OUR RECORD WITH REGARD TO THE INSPECTION.
THE IDEA THAT, THOUGH, COUNSEL IS NOW UNBEKNOWNST TO US SET UP THIS MOTOR HOME IN A WAY THAT IT’S AS THOUGH IT’S GOING TO TESTIFY. NOW THERE’S MARKED EXHIBITS WHERE THERE’S A DISPUTE IN THE EVIDENCE AS TO WHERE THE EVIDENCE WAS. BY ALLOWING THE PLACARDS WHICH I ASSUME ARE WHAT COUNSEL IS TALKING ABOUT TO BE STATIONED, THAT BASICALLY ALLOWS THE MOTOR HOME TO BE USED AS AN ARGUMENT IN SUPPORT OF THE PROPOSITION — IN SUPPORT OF THE PROSECUTION’S POSITION. WE OPPOSE THAT NOTION.
THE UNDERSTANDING THAT WE HAD ANYWAY UNTIL THIS MOMENT WAS THAT THE COURT HAD GRANTED A VIEW OF THE SCENE. THAT DIDN’T ALLOW — I MEAN THERE WAS NO DISCUSSION PRIOR TO THIS MOMENT OF STATIONING PLACARDS ANY PLACE OR FOR THAT MATTER HOW THIS WHOLE THING WAS GOING TO OCCUR. SO WITH REGARD TO THE MANNER IN WHICH THE INSPECTION OCCURS, WHATEVER THE COURT THINKS IS APPROPRIATE, WE DON’T OPPOSE.
THE COURT: ALL RIGHT.
WHAT I AM GOING TO DO ON THAT IS I’M GOING TO TAKE THE OBJECTION UNDER SUBMISSION, AND WE COLLECTIVELY, MEANING COUNSEL AND THE COURT, WILL LOOK AT WHAT THE CURRENT SITUATION IS BEFORE THE JURORS ARE BROUGHT IN. AS A MATTER OF FACT, WE CAN GO DIRECTLY OVER THERE AND LOOK AT IT. AND I’LL RULE ON YOUR OBJECTION ONCE I SEE WHAT THE CIRCUMSTANCES ARE OVER THERE.
ALL RIGHT. SO WE’LL ALL MEET OVER THERE, LET’S SEE, LOGISTICALLY HOW MUCH TIME ARE YOU FOLKS GOING TO NEED?
THE BAILIFF: FIFTEEN MINUTES.

THE COURT: FIFTEEN MINUTES. ALL RIGHT.
FOR THE LIMITED PURPOSE OF LOOKING AT THE MOTOR HOME, MR. FELDMAN, ARE YOU WILLING TO WAIVE YOUR CLIENT’S PRESENCE JUST TO LOOK AT IT?
MR. FELDMAN: FOR THE PARTIES TO LOOK AT IT, THE LAWYERS?
THE COURT: JUST COUNSEL. JUST COUNSEL AND THE COURT. IF NOT, THAT’S FINE. I MEAN I DON’T HAVE A PROBLEM SETTING IT ALL UP WHEN HE’S THERE.
MR. FELDMAN: I THINK HE WOULD LIKE TO BE PRESENT. HE WOULD LIKE TO BE PRESENT, YOUR HONOR.
THE COURT: ALL RIGHT.
LET’S DO THIS: ALL COUNSEL MEET AT THE JURY OVERFLOW ROOM AT 3:00 O’CLOCK.
MR. FELDMAN: YES, YOUR HONOR.
MR. DUSEK: WILL WE BE COMING BACK HERE?
MR. FELDMAN: THE LAWYERS.
THE COURT: YOU CAN IF YOU WANT. IN OTHER WORDS, YOU CAN LEAVE ALL YOUR BRIEFCASES AND ALL OF THAT MATERIAL.
MR. DUSEK: MY ONLY CONCERN IS SCHEDULING PURPOSES. OBVIOUSLY MONDAY WE WILL BE DOING THE HEARING. DEPENDING UPON THE RULING OF THE COURT, EITHER WE WILL BE PUTTING ON A WITNESS TUESDAY, THAT PROBABLY WILL NOT TAKE MORE THAN HALF A DAY. THEREFORE, THE DEFENSE WILL BE READY TO ASSUME THEIR CASE IN THE AFTERNOON. IF WE DON’T, IF WE AREN’T ALLOWED TO PUT ON OUR WITNESS, WE WILL BE RESTING AND AGAIN THE DEFENSE WILL BE — AT LEAST HAVE THE OPPORTUNITY TO BEGIN ON TUESDAY.
THE COURT: DO YOU WANT TO USE TOMORROW FOR EXHIBITS, DISCUSSION OF EXHIBITS, OR ANYTHING ELSE AS IT RELATES — I MEAN, IN OTHER WORDS, IS THERE ANYTHING WE CAN ACCOMPLISH TOMORROW?
MR. DUSEK: PROBABLY.
THE COURT: WE HAVE A LARGE NUMBER OF EXHIBITS, A LOT OF WHICH ARE NOT GOING TO HAVE ANYTHING TO DO WITH THE ISSUE REMAINING. SO I WOULD SUGGEST WE AT LEAST MEET BRIEFLY TOMORROW AND GET AS MANY OF THOSE OUT OF THE WAY AS WE CAN SO WHEN YOU ACTUALLY REST, WE HAVE VERY FEW ITEMS TO ACTUALLY DISCUSS.
MR. DUSEK: SOUNDS GOOD.
THE COURT: ALL RIGHT.
MR. FELDMAN: THAT SOUNDS APPROPRIATE, YOUR HONOR.
THE COURT: ALL RIGHT. 9:00 O’CLOCK STILL?
MR. DUSEK: SURE.
THE COURT: OKAY.
YES, MISS CUMMINS.
MS. CUMMINS: YOUR HONOR, PURSUANT TO THE SUGGESTED ALTERNATIVE, WOULD THE PRESS BE ALLOWED TO VIEW THE MOTOR HOME AFTER THE JURY HAS VIEWED IT?
THE COURT: NO. NO. I DON’T EVEN KNOW WHAT THE FASCINATION IS. BUT THE ANSWER TO THE QUESTION IS NO.
MR. BOYCE: IS MR. WESTERFIELD GOING TO BE HERE TOMORROW?
THE COURT: SURE. YES. NO, HE WILL BE HERE TOMORROW.
(END OF PROCEEDINGS OUT OF THE PRESENCE OF THE JURY.)
(RECESS, 2:45 O’CLOCK, P.M., TO 3:00 O’CLOCK, P.M.)
/ / /
/ / /
/ / /

56 - Day 15- June 27th 2002 - Motions trial David Westerfield
54 - Day 14- June 26th 2002 - Transcript criminal trial David Westerfield